FIFTH SECTION

DECISION

Application no . 545/08 Jens ENKE against Germany

The European Court of Human Rights (Fifth Section), sitting on 9 October 2012 as a Chamber composed of:

Dean Spielmann , President, Mark Villiger , Karel Jungwiert , Boštjan M. Zupančič , Angelika Nußberger , André Potocki , Paul Lemmens , judges, and Claudia Westerdiek , Section Registrar ,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Jens Enke , is a German national, who was born in 1957 and lives in Cuxhaven . He was represented before the Court by Ms B. Barbe -Becker, a lawyer practising in Bremerhaven .

A. The circumstances of the case

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

1. Background to the case

The applicant ’ s son was born out of wedlock in April 1994. Following the marriage with the child ’ s mother the applicant acquired joint custody ( gemeinsame Personensorge ) in the same year. In February 1998 the couple separated. The applicant ’ s wife and their common son moved to another flat in October 1999. However, the child stayed three days a week with the applicant until 18 July 2000.

2. The first set of custody rights proceedings

On 1 July 1999 the child ’ s mother requested the Cuxhafen District Court to transfer the right to determine where the child should reside ( Aufenthaltsbestimmungsrecht ) to her. On 18 August 1999 the applicant requested that custody of the child or, alternatively, the right to determine where the child should reside be transferred to him. On 19 August 1999 the child ’ s mother submitted an interim request to the District Court to award custody provisionally to her.

During a hearing before the District Court on 20 August 1999 the child ’ s mother requested that custody of the child be transferred to her. By decision of 20 August 1999 the District Court ordered a psychological expert opinion to which parent custody of the child should be transferred.

The expert, having examined the parents and the child, submitted an expert opinion , running 86 pages long, on 22 May 2000. The expert found that the child should reside with his mother and recommended to render a joint custody regulation provided that the parents would overcome their personal disputes by using professional assistance.

On 23 June 2000 the applicant submitted an interim request to the District Court to provisionally award him the right to determine where the child should reside. During a hearing before the District Court on 26 June 2000 the applicant withdrew his custody request and confined his application to the right to determine the child ’ s place of residence.

By decision of 18 July 2000 the District Court granted the child ’ s mother sole custody for the time the parties lived separately. The court held that the child had a closer emotional link with his mother and should therefore remain with her. It further found that under the present circumstances joint custody would not serve the child ’ s benefit due to the ongoing disputes between the parents and their failure to agree on basic decisions concerning the child.

By decision dated 5 January 2001 the Celle Court of Appeal dismissed the applicant ’ s complaint against the District Court ’ s decision. It expressed misgivings as to whether the parents were willing to cooperate. The Celle Court of Appeal had regard to the tensions between the applicant and his wife and considered that the parents did not appear to be able to jointly decide important questions in the child ’ s best interest.

3. The divorce proceedings and the second set of custody rights proceedings

By written submission to the Cuxhaven District Court dated 13 March 2001, the applicant requested to amend the custody regulation. The applicant submitted that the situation had significantly changed. The parties were now willing and able to cooperate for the child and to make common decisions. The applicant invited the District Court to order joint custody in case that the pending divorce proceedings became final. He further requested the District Court to appoint a guardian ad litem for the child.

During a hearing before the District Court on 16 March 2003 the applicant ’ s wife opposed the request for joint custody. During another hearing before the District Court on 31 August 2003 counsel of the applicant ’ s wife declined any friendly settlement in respect of the custody regulation. Neither the applicant ’ s wife nor their son attended this hearing.

By judgment dated 31 October 2003 the Cuxhaven District Court issued a divorce decree. Simultaneously, it dismissed the applicant ’ s request to order joint custody. In this respect the District Court relied on Section 1696 of the German Civil Code ( the “Civil Code” - see Relevant domestic law below) and found that the applicant had failed to submit any sound reasons ( triftige Gründe ) concerning the benefit of the child that might result in a change of the custody regulation.

The applicant appealed . He pointed out, inter alia , that the custody decision was no longer up to date. The applicant submitted that the tensions had loosened against the background of the divorce proceedings and that the cooperation with the child ’ s mother proved to be working in daily routine. The applicant further stressed that the custody decision of the District Court had been for the time of separation only and, thus, had had a temporary character. He requested the Celle Court of Appeal to order a new expert opinion and to hear the child ’ s mother in person.

On 12 March 2004 the Celle Court of Appeal dismissed the applicant ’ s complaint. It relied on Sections 1696 and 1671 § 2 of the Civil Code. Referring to the case law, it underlined that joint custody and sole custody did not establish a relationship of rule and exception in a way that sole custody of a parent could be regarded as ultima -ratio . The court stated that it was insufficient for an amendment of a custody decision to be compatible with the well-being of the concerned child, but rather that the advantages sought by the amendment had to clearly outweigh the inherent disadvantages. It held that the applicant ’ s complaint did not state any sound reason for the change of the custody regulation. Even assuming the alleged practise of joint custody in daily routine, the Celle Court of Appeal considered that in addition a shared willingness of both parents to re ‑ establish joint custody was necessary. That in turn could not be assumed in view of the refusal of the applicant ’ s wife to change the custody regulation. Moreover, the Celle Court of Appeal was of the opinion that the applicant could not rely on a change of the circumstances the previous custody decision had been based on, namely that the parents had abandoned their dispute during their separation on the child ’ s upbringing and were willing to communicate. It observed that there was no indication that the child would indeed profit from joint custody and the applicant ’ s participation in making decisions of far-reaching consequences.

By written submission dated 23 April 2004, the applicant lodged a constitutional complaint, alleging that the courts failed to review the custody decision made during the separation phase after the divorce proceedings proprio motu . He argued that the high threshold level implied in Section 1696 of the Civil Code for a change from sole custody to joint custody rendered an amendment without the consent of the other parent impossible even if joint custody was practised in everyday life. On 22 June 2007 the Federal Constitutional Court refused to admit the constitutional complaint for adjudication without giving further reasons.

B. Relevant domestic law

Pursuant to Article 6 § 2 of the German Basic Law the care and upbringing of children is the natural right of parents and a duty primarily incumbent upon them. The state oversees the performance of this duty.

The relevant provisions of the Civil Code read as follows:

Section 1671 Living apart and joint parental custody

“(1) If parents who exercise joint parental custody, live apart for a period that is not merely temporary, each parent may apply for the family court to transfer parental custody or part of the parental custody to him alone.

(2) The application is to be granted to the extent that

1. the other parent consents, unless the child has reached the age of fourteen and objects to the transfer, or

2. it is to be expected that the termination of the joint parental custody and the transfer to the applicant is most conducive to the best interests of the child ( ... )”.

( ... )

Section 1696 Amendment of judicial decisions and of court-approved settlements

“(1) The decision on the right of custody or of access or a court-approved settlement must be amended if this is appropriate for sound reasons which affect the benefit of the child in the long term. ( ... ). “

COMPLAINTS

The applicant complained under Articles 6, 8 and 14 of the Convention that the refusal to award him joint custody for his son infringed his right to respect for his family life. The applicant was of the opinion that joint custody was as a matter of principle in the interest of the child. He alleged that the strict requirements which were necessary to amend a decision on the right of custody without the consent of the other parent could not be complied with in practise and factually render an amendment impossible.

THE LAW

1. The applicant complained that the court decisions refusing him joint custody had violated his right to respect for his family life with his son.

He relied on Article 8, which provides as follows:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

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.”

The Court reiterates at the outset that the mutual enjoyment by a parent and a child of each other ’ s company constitutes a fundamental element of family life, even if the relationship between the parents has broken down, and domestic measures which hinder such enjoyment amount to an interference with the right protected by Article 8 (see, among others Elsholz v. Germany [GC], no. 25735/94, § 43, ECHR 2000 ‑ VIII). The refusal to re ‑ establish joint parental custody and, thus, the impossibility for the applicant to take part in the decision making process concerning , inter alia , his son ’ s education, care and the determination of his place of residence, amounted to an interference with his right to respect for his family life.

It must therefore be examined whether this interference complied with the requirements of the second paragraph of Article 8, namely, whether it was “in accordance with the law”, pursued an aim or aims that are legitimate under paragraph 2 of this provision and can be regarded as “necessary in a democratic society”.

The Court notes that the German courts ’ decisions had a basis in national law, namely in Section 1696 of the Civil Code. Although the applicant argued that the strict requirements implied in this provision rendered a change of the parental authority impossible and were, therefore, unlawful, it is reiterated that the Court does not examine the domestic legislation in the abstract in cases arising from individual applications but must examine the manner in which that legislation was applied to the applicant in the particular circumstances of the case (see, among others, Sahin v. Germany [GC], no. 30943/96, § 87, ECHR 2003 ‑ VIII).

The Court, further, observes that Article 1696 of the Civil Code pursued, inter alia , the aim to protect children from incessant custody proceedings and to provide a stable and continuous custody situation. It, thus, legitimately aimed at protecting the “health” and “rights and freedoms of others”.

In determining whether the refusal of joint custody was “necessary in a democratic society” the Court has to consider whether, in the light of the case as a whole, the reasons adduced to justify this measure were relevant and sufficient for the purposes of paragraph 2 of Article 8 of the Convention. In cases concerning custody of children it is of paramount importance what is in the best interests of the child. The Court observes that the applicant ’ s request was refused by the courts by referring to their initial custody decision, which was made in his son ’ s best interest, as well as due to the fact that he had failed to submit convincing reasons why his son would benefit from an amendment. The domestic courts, thus, adduced relevant reasons to justify their decision.

In order to assess whether those reasons were “sufficient” the Court considers it necessary to determine at the same time whether the decision ‑ making process, seen as a whole, was fair and provided the applicant with the requisite protection of his interests ( see Sahin v. Germany, cited above, § 68).

The Court observes, firstly, that the applicant was directly involved in the proceedings in person and advised by counsel. It notes also that the applicant had the opportunity to challenge the first instance decision before the Court of Appeal. Further, the domestic courts had regard to the entire family situation. While it is true that the courts refused the applicant ’ s request to take new expert evidence, the Court notes that the applicant initiated the new proceedings merely two months after the prior custody decision had been affirmed by the Court of Appeal. It appears not unreasonable that the domestic courts relied also on the expert opinion rendered in those proceedings which contained an in-depth analysis of the applicant ’ s family situation.

Secondly, the Court notes that the applicant ’ s wife had strictly refused any change of custody in the hearing before the district court on 16 March 2003 and that her counsel confirmed her refusal in the hearing on 31 August 2003. In this context the domestic courts ’ finding that the conflicts concerning the child ’ s upbringing had not been settled between the applicant and the child ’ s mother appears comprehensible. Under these circumstances it is acceptable that the courts did not hear the child ’ s mother and his son in person. The Court notes also that the expert opinion concluded that joint custody could not be established without a prior consent on the parenting style. Under these circumstances the conclusion not to order an additional psychological examination of the child does not appear arbitrary.

The Court observes, thirdly, that Section 1696 § 2 of the Civil Code does not as such preclude a change of the custody regulations but rather impedes the initiation of new proceedings in already settled custody disputes. It balances the interests of a parent in gaining custody of his child on the one side and the interest of the child and the parent enjoying sole custody on the other side by avoiding unnecessary court disputes which put a strain on the parties and especially on the child concerned. In the present case the applicant had regular access to his son. He was therefore in a position to realise and react if there had been convincing reasons that a change of the custody regulation was necessary for his son ’ s well-being. However, he mainly submitted the opposite, namely that in everyday life the cooperation with the mother had improved and therefore in his view a joint custody regulation appeared now possible. While the applicant argues that joint custody is always more favourable for the child ’ s benefit than sole custody, the Court finds it acceptable to make this decision on a case to case basis with due respect to the individual family situation.

Having regard to these considerations and to the wide margin of appreciation that national authorities enjoy when deciding on custody (compare, inter alia , Sahin , cited above, §§ 64-65), the Court is satisfied that the domestic courts ’ procedural approach was fair and based on sufficient material and therefore provided the applicant with the requisite protection of his right to respect to family life.

Accordingly, in the circumstances of the case there has been no violation of Article 8 of the Convention.

2. The applicant complained also under Articles 6 and 14 that the decision of the domestic courts resulted in an unequal treatment of the parents.

However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Claudia Westerdiek Dean Spielmann Registrar President