FIFTH SECTION

DECISION

Application no . 67656/12 Richard THOR against Austria

The European Court of Human Rights (F if th 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 Section Reg i strar ,

Having regard to the above application lodged on 12 October 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 Richard Thor, is a Swedish national who was born in 1971 and lived in Tulln . He is represented before the Court by Mr W. Kunert , a lawyer practising in Stockerau .

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. The Swedish Government did not make use of their right to intervene under Article 36 § 1 of the Convention.

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 G.T. are the parents of E.T., born on 13 October 2005 out of wedlock. The parents were married on 12 May 2006 and E.T. thereby acquired the status of having been born in wedlock with both parents having joint custody of him. On 9 December 2010 G.T. applied to the Tulln District Court for sole custody of E.T. and announced that she was planning a divorce. She stated that the child ’ s best interests would not be guaranteed if she stayed with the applicant. G.T. then moved out of the flat, together with E.T. The parents were divorced on 17 February 2011. After the divorce the parents maintained joint custody of their child, even though E.T. was living with his mother.

5. On 25 February 2011 the applicant lodged an application seeking that he be awarded sole custody of E.T. He argued that G.T. tried to alienate the child from him and that she actually failed to fulfil her parental duties. On 28 February 2011 the District Court appointed an expert in respect of the question of custody.

6. On 18 May 2011 the expert submitted her report. She concluded that, provided that adequate contact between E.T. and the applicant was ensured, it was in the interests of the well-being of E.T. that custody of him be awarded to G.T. In the event that the court were to grant joint custody, the principal residence of E.T. should be with his mother.

7. On 10 June 2011 the applicant and G.T. reached an agreement on the applicant ’ s contact rights in respect of E.T. before the District Court. That agreement was modified on 1 September 2011.

8. On 8 September 2011 G.T. reiterated her application for sole custody, stating that the applicant avoided any communication with her and that she could not see how – given this fact – joint custody was practicable or feasible.

9. On 29 December 2011 the District Court awarded G.T. sole custody and based this decision on the recommendation of a psychological expert. Moreover, the court referred to the fact that E.T., who was living with his mother, had stated that he wished to continue to do so and had shown a strong emotional link to her. The District Court furthermore noted that the applicant had not respected the agreement on contact rights and had on various occasions visited E.T. at his kindergarten – conduct which could increase the psychological strain on E.T. and could entail a risk to the well ‑ being of the child if joint custody were to be maintained. Since it was not possible under Article 177a of the Civil Code to maintain joint custody after a divorce if the parents did not agree on it the court had to award sole custody, which, for the reasons set out above, had to be granted to G.T.

10. On 11 January 2012 the applicant appealed. He argued that the proceedings had been defective because an additional expert report should have been ordered. He furthermore argued that Article 177a of the Civil Code was unconstitutional and in violation of his Convention rights and asked the Regional Court to apply to the Constitutional Court for judicial review of the constitutionality of this provision.

11. On 15 February 2012 the St. P ö lten Regional Court dismissed the applicant ’ s appeal and upheld the reasoning of the District Court. It held in particular that there was no indication of a risk to the child ’ s best interests if G.T. were to hold sole custody of E.T. The applicant had not submitted sufficient reasons for custody not to be granted to G.T., as the mere fact that she was assisted in caring for E.T. by her mother and the fact that E.T. was having difficulties in adapting to his new kindergarten did not cast any doubt on the capacity of G.T. to care for E.T. In so far as the applicant made further allegations of misconduct on the part of the mother without offering any evidence, such allegations were not sufficient to necessitate the supplementing of the expert report in the file. The court furthermore held that there were no concerns in terms of constitutional law regarding the fact that it was not possible to maintain joint custody after a divorce if the parents did not agree on it; thus, it held that the transfer of custody rights was only possible in the event that the child ’ s best interests were at risk. The court noted, moreover, that the present case was not comparable with the case of Sporer v Austria (no. 35637/03, 3 February 2011) , since E.T. had been born in wedlock and the parents had held joint custody in the past. In such a case neither of the parents held a privileged position as regards the award of custody, and Article 177 of the Civil Code was therefore not discriminatory. In any event there was no room for dismissing the application for sole custody lodged by G.T., as the applicant himself had also lodged an application for sole custody and the court therefore had to decide.

12. On 25 April 2012 the Supreme Court rejected the applicant ’ s extraordinary appeal since it did not raise any important questions of law. Moreover, the Supreme Court found that the Court ’ s judgment in the case of Sporer v Austria had to be distinguished from the present case because the underlying facts were fundamentally different. Sporer had concerned custody of a child born out of wedlock (in which case Article 176 of the Civil Code did not provide for joint custody but granted sole custody of the child to the mother ) ; in the present case, E.T. had been born in wedlock, so the parents had initially had joint custody, but that arrangement had failed and as a consequence the courts had had to grant sole custody to one of the parents. That decision was served on the applicant on 18 May 2012.

13. Following the 2013 amendment to the Civil Code, which entered into force on 1 February 2013, the applicant did not lodge an application for joint custody of E.T. According to a statement by the local youth office ( Jugendamt ) of 17 July 2013, the applicant no longer availed himself of his right to visit E.T. as he had moved to Russia on an unspecified date.

B. Relevant domestic law

14. Article 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 in accordance with 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 it 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.”

15. The relevant provisions of the Austrian Civil Code were amended significantly on 1 February 2013. The relevant sections read as follows:

Article 179 of the Civil Code

Custody after dissolution of the 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.”

COMPLAINTS

16. The applicant complained under Article 8 of the Convention that the decisions of the Austrian courts refusing to grant him joint custody of E.T. had violated his rights under Article 8 of the Convention.

17. Under Article 14 of the Convention, read in conjunction with Article 8, the applicant complained that the application of Article 177a of the Civil Code in his case, resulting in the granting of custody of E.T. to his former wife G.T., had constituted discrimination on the grounds of sex.

THE LAW

18. At the outset 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 provisions the applicant had had the possibility to apply to the relevant authority to be awarded joint custody (see paragraph 15 above). Since the applicant had therefore had the possibility to lodge a fresh application for the awarding of joint custody but had failed to make use of it, he had failed to exhaust the domestic remedies available to him.

19. The applicant did not comment on this point.

20. The Court reiterates that the 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 , 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 Nogolica v. Croatia ( dec. ), no. 77784/01, ECHR 2002 ‑ VIII; Brusco , cited above; and 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; see also İçyer v. Turkey ( dec. ) no. 18888/02, ECHR 2006-I).

21. 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.

A. Complaint under Article 8 of the Convention

22. The applicant complained that the decisions of the Austrian courts refusing to grant him joint custody of E.T. had violated his rights under 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.”

1. The parties ’ submissions

23. T he Government acknowledged that the refusal to grant the applicant joint custody had 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 the interference in question had been provided for by law and had pursued a legitimate aim. As regards the necessity of the interference, the Austrian courts had examined carefully and expeditiously the applicant ’ s and his wife ’ s respective applications for the granting of custody. After obtaining an expert opinion, which had concluded that it would be to the benefit of E.T. for sole custody to be granted to the mother, and having heard both parents, the courts had concluded that sole custody of E.T. should be granted to G.T. It also had to be noted that until the Supreme Court gave its final decision in the domestic proceedings, the parents had had joint custody, even though they had been divorced in the meantime. For these reasons the interference with the applicant ’ s rights under Article 8 of the Convention had been justified.

24. The applicant did not comment on this point.

2. The Court ’ s assessment

25. 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, § 71, 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).

26. 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 authorities, Glaser v. the United Kingdom , no. 32346/96, § 64, 19 September 2000; Sommerfeld , cited above, § 63; Sahin , cited above, § 65 ).

27. 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 ).

28. The Court observes that it is not in dispute between the parties that the granting of sole custody of E.T. to G.T . (even though the applicant was granted the right to visit him) constituted an interference with his right to respect for his family life under Article 8 of the Convention. Moreover, and this is not in dispute between the parties, the measure at issue had a basis in national law (namely Articles 177 and 177a of the Civil Code) and was aimed at protecting the best interests of the applicant ’ s child, E.T., 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 , cited above, § 37). It therefore remains to be determined whether the decisions could be regarded as “necessary in a democratic society”.

29. As regards the question of whether the interference was “necessary in a democratic society”, the Court observes that following his marriage to G.T. the applicant had joint custody of E.T. and continued to have joint custody until the Supreme Court gave its final decision in the proceedings. From that time on G.T. had sole custody of E.T. and the applicant the right to visit him.

30. The Court considers that the domestic courts, confronted with requests from both parents to award them sole custody, carefully considered the questions of the awarding of custody of E.T. and of visiting rights. The District Court ordered an expert report, which recommended that sole custody of E.T. be given to his mother and that visiting rights be granted to the applicant. The expert did not recommend maintaining joint custody, which – once both parents had requested sole custody – in any case was no longer possible under Article 177a of the Civil Code, but merely recommended that were joint custody to be awarded the principle residence of E.T. should be with his mother. Moreover the District Court heard the parents on this issue and gave them the opportunity to comment on that report. On the basis of that evidence the District Court concluded that it was in the interests of the well-being of E.T. that sole custody of him be granted to his mother, G.T., but that his father be granted visiting rights. That decision was upheld by the Regional Court and the Supreme Court. In so far as the applicant complained that this decision (which also terminated the joint custody arrangement) had infringed his rights under Article 8 of the Convention, the Court observes that it was not only G.T. but also the applicant himself who applied for sole custody. Moreover, the Cou rt reiterates that the exclusion of shared parental authority where 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).

31. On these grounds, the Court is satisfied that the decision of the Tulln District Court of 29 December 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.

32. 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 (a) and 4 of the Convention.

B. Complaint under Article 14 of the Convention read in conjunction with Article 8

33. The applicant complained further that the application of Article 177a of the Civil Code in his case, resulting in the granting of custody of E.T. to his former wife, G.T., constituted discrimination on the grounds of sex. He relied on Article 14 of the Convention, read in conjunction with Article 8 (see text paragraph 20 above).

34. Article 14 of the Convention provides:

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

35. The Government did not comment on this point, but referred to their above-mentioned submissions under Article 8 of the Convention. The applicant did not comment on this point either.

36. As the Court has consistently held, Article 14 of the Convention complements the other substantive provisions of the Convention and the Protocols. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions. Although the application of Article 14 does not presuppose a breach of those provisions – and to this extent it is autonomous – there can be no room for its application unless the facts at issue fall within the ambit of one or more of the latter (see, among many other authorities, Van Raalte v. the Netherlands , 21 February 1997, § 33, Reports of Judgments and Decisions 1997-I , and Camp and Bourimi v. the Netherlands , no. 28369/95, § 34, ECHR 2000-X).

37. The Court has already examined above the facts of the case under Article 8 of the Convention. Accordingly, the Court is in no doubt that the facts of the case fall within the ambit of Artic le 8 of the Convention. Article 14 of the Convention can therefore apply, taken in conjunction with Article 8.

39. The scope of the margin of appreciation will vary according to the circumstances, the subject matter and its background; in this respect, one of the relevant factors may be the existence or non-existence of common ground between the laws of the Contracting States ( Petrovic v. Austria , no. 20458/92, 27 March 1998, § 38, Reports 1998 ‑ II, and Zaunegger v. Germany , no. 22028/04 , § 50, 3 December 2009) .

40. However, very weighty reasons need to be put forward before a difference in treatment on the grounds of sex or of birth outside or within wedlock can be regarded as compatible with the Convention. The same is true for a difference in the treatment of the father of a child born out of wedlock as compared with the father of a child born of a marriage-based relationship (ibid., § 51, with further references).

41. In the case of Sporer , in which the applicant complained that the relevant provisions of the Austrian Civil Code (in particular Article 176), and the decisions of the Austrian courts based thereon, had discriminated against him as the father of a child born out of wedlock, the Court held as follows:

“88. In the present case, Austrian law did not allow for a judicial review of whether joint custody would be in the interests of the child, nor did it allow for an examination, in the event that joint custody was against the child ’ s interests, of whether the child ’ s interests were better served by awarding sole custody to the mother or to the father. The only issue the domestic courts could examine, pursuant to Article 176 of the Civil Code, was whether the child ’ s well-being was endangered if the mother continued to exercise sole custody. In contrast, Austrian law provides for a full judicial review of the attribution of parental authority and resolution of conflicts between separated parents in cases in which the father once held parental authority, either because the parents were married or, if they were unmarried, had concluded an agreement to exercise joint custody. In such cases the parents retain joint custody unless the court, upon request, awards sole custody to one parent in accordance with the child ’ s best interests pursuant to Article 177a of the Civil Code.

89. The Court considers that the Government have not submitted sufficient reasons to justify why the situation of the applicant, who had assumed his role as ... father from the very beginning, should allow for less judicial scrutiny than these cases and why the applicant should in this respect be treated differently from a father who had originally held parental authority and later separated from the mother or divorced. ”

42. The Court agrees with the Austrian courts that the present case differs from Sporer , since the applicant, following his marriage on 12 May 2006 , was the father of a son born in wedlock and thus had joint custody, together with G.T., from that moment on and maintained this status until the Supreme Court ’ s decision of 25 April 2012 became final on 5 July 2012, even though he was divorced in the meantime.

43. As can be seen in the light of the above-mentioned considerations in respect of Article 8 of the Convention (see paragraph 30- 3 1 above), the Austrian courts as a consequence had to determine which of the parents they should entrust with sole custody. As noted above they decided this question only after carefully examining the matter and having heard the parties and having obtained the report of an expert on this matter. There is no indication that the decision reached was unreasonable or not taken in the interests of the well-being of E.T. Moreover, there is no indication of discrimination on the grounds of sex, as neither of the parents had a privileged position as regards the awarding of sole custody, the only criteria being the well-being of the child. Thus, the decision at issue had an objective and reasonable justification and did not constitute discrimination prohibited by Article 14 of the Convention.

44. Consequently, the Court concludes that there is no appearance of a violation of Article 14 of the Convention, ta ken in conjunction with Article 8 . It follows that this complaint must be rejected as being manifestly ill ‑ founded, pursuant to Article 35 §§ 3 (a) 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